Commonwealth v. Miranda, 18-P-1257
| Decision Date | 22 November 2019 |
| Docket Number | 18-P-1257 |
| Citation | 96 Mass.App.Ct. 1110,138 N.E.3d 1052 (Table) |
| Parties | COMMONWEALTH v. Christian MIRANDA. |
| Court | Appeals Court of Massachusetts |
After a jury trial, the defendant, Christian Miranda, was convicted of conspiracy to traffic cocaine and conspiracy to distribute marijuana. He was convicted as a habitual offender with respect to the cocaine conspiracy count after a second jury trial. On appeal he raises a variety of claims concerning the issuance and extension of a wiretap warrant, the conduct of his trial, and the habitual offender enhancement.2 We affirm.
1. Definition of "organized crime." The defendant argues that the term "organized crime" as used in the Massachusetts wiretap statute is unconstitutionally vague. As he raises this argument for the first time on appeal, he is entitled to relief only if he possesses a valid claim of error that creates a substantial risk of a miscarriage of justice. See Commonwealth v. Johnson, 470 Mass. 300, 307 (2014). He does not.
"A statute violates due process and is void for vagueness when individuals of normal intelligence must guess at the statute's meaning and may differ as to its application, thus denying them fair notice of the proscribed conduct." Commonwealth v. Disler, 451 Mass. 216, 223 (2008). "If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness." Commonwealth v. Crawford, 430 Mass. 683, 689 (2000).
The Supreme Judicial Court first elucidated the definition of "organized crime" in Commonwealth v. Thorpe, 384 Mass. 271 (1981), cert. denied, 454 U.S. 1147 (1982). The court held that "the Legislature intended to define organized crime as ‘a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.’ " Id. at 277, quoting G. L. c. 272, § 99 A.3 Subsequent decisions have offered further clarification. The hallmarks of organized crime, warranting electronic surveillance in Massachusetts, are a high degree of organization and discipline in connection with an ongoing illegal business operation. See Commonwealth v. Mitchell, 468 Mass. 417, 425-427 (2014) ; Commonwealth v. Tavares, 459 Mass. 289, 300-301 (2011) ; Commonwealth v. Long, 454 Mass. 542, 556-557 (2009) ; Commonwealth v. D'Amour, 428 Mass. 725, 736-737 (1999). Likewise, case law has explained what organized crime is not. Organized crime does not involve mere "garden-variety" criminal activity, D'Amour, supra at 737; requires more than a one-time "coordination among cohorts," Long, supra at 558; and is not characterized by a "roguish or free-agent quality," Tavares, supra at 302.
Because the meaning of organized crime has been definitively construed and is well understood, the defendant's vagueness challenge fails. See Commonwealth v. Hyde, 434 Mass. 594, 598 (2001) ().4
2. Nexus to organized crime. The defendant contends that his motion to suppress should have been allowed because the "Greene A" wiretap application failed to establish the requisite nexus to organized crime. "A wiretap warrant may only issue ‘[u]pon a showing ... that there is probable cause to believe that a designated offense has been, is being, or is about to be committed ....’ " Long, 454 Mass. at 555, quoting G. L. c. 272, § 99 E 2. The designated offense must have a nexus with organized crime. Long, supra at 556; D'Amour, 428 Mass. at 735. With narrow exceptions, see Long, supra at 554, "our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ " Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). We review the wiretap application materials to determine whether they supplied the judge with a "substantial basis" to issue the warrant. O'Day, supra at 298. See D'Amour, 428 Mass. at 736 ().
The affidavit accompanying the "Greene A" warrant application set forth in detail how, for fifteen years, detectives in the Boston Police Department's youth violence strike force and special investigations unit had monitored a group of individuals known as the "Magnolia Street Steelers" and their participation in numerous crimes, including drug distribution. During the investigation, officers spoke with several individuals who openly claimed membership in the group, including the subject of the wiretap, Ricardo Greene. Using traditional investigation methods, including interviews of identified and confidential informants, controlled buys, physical surveillance, telephone toll record analysis, and searching trash, the officers identified an ongoing organized drug distribution business.
The affidavit described a hierarchy within the group, including roles in drug distribution. The affidavit identified the leader of the group, one of its founding members, whom Greene "idolized." The leader was also the main drug supplier, and at various times when he was incarcerated, other members -- at one point, the defendant -- took on the role of leader and main supplier. Greene was a mid-level dealer, selling larger quantities, such as eighths and sixteenths of a kilogram of cocaine, to other members, and also made street-level sales to individual customers. The affidavits identified several men, including Greene's father, who worked for or with Greene in dealing and distributing "crack" cocaine. On one occasion, officers watched two unknown men take trash bags from Greene's residence -- later discovered to include evidence of large-scale drug dealing -- and dispose of them at a remote location.5
The affidavit provided ample evidence that Greene and others were engaged in preparing and distributing drugs. Officers conducted multiple controlled buys involving Greene and other members of the group. Officers found materials used in packaging and distributing drugs in the trash from both Greene's and his father's residences. Phone records showed that Greene and others communicated using a rotating set of cell phones bought prepaid or under false names. Considered as a whole, in a commonsense rather than a hypercritical manner, see Commonwealth v. Holley, 478 Mass. 508, 521 (2017), the application provided sufficient evidence for the issuing judge to conclude that the individuals named in the affidavit were "in fact, operating an organized drug business." Commonwealth v. Burgos, 470 Mass. 133, 142 (2014).6
3. Wiretap renewals. The defendant next contends that there was no basis to allow the first wiretap warrant extension because the scope of the conspiracy was fully ascertained upon the conclusion of the "Greene A" wiretap. He also argues that even if authorization of the "Greene B" wiretap renewal was proper, there was no need for additional wiretaps thereafter.
Applications for wiretap warrant renewals "must incorporate the warrant sought to be renewed"; "must set forth the results of the interceptions thus far conducted"; and, in addition, "must set forth present grounds for extension in conformity with paragraph F" of the statute.7 G. L. c. 272, § 99 J 1. The affidavits in support of both extensions set forth the conversations intercepted during the prior period of the warrant, described with particularity the communications sought to be intercepted during the extension periods, and also explained why traditional investigative procedures would be insufficient. See G. L. c. 272, § 99 E 3.
As stated in the original "Greene A" wiretap affidavit and reiterated in the renewal applications, the goals of the investigation were to identify, apprehend, and bring about the successful prosecution of individuals at all levels of the drug distribution chain, both higher and lower than Greene; to identify the locations utilized to manufacture and store drugs; to expose the full scope of the drug distribution chain; and to permanently dismantle the criminal drug distribution activities of the organization. The application for the first renewal acknowledged that while evidence obtained during the course of the first wiretap could support the arrest and prosecution of Greene, use of normal investigative procedures would not suffice to identify, apprehend, and prosecute all persons involved in the organization or the sources of the drugs. And the application for the second renewal disclosed that additional electronic surveillance would be required to "dismantle" the organization and to identify the dealers at higher levels, the local and street-level dealers, the location of the contraband, and the use of the proceeds. The defendant has failed to demonstrate any error or abuse of discretion in the approval of the wiretap warrant renewals.
4. Franks/Amral hearing. The defendant moved for a Franks/Amral hearing for the disclosure of the identity of one confidential informant. In support of his motion, he asserted that the informant must have been fabricated because Greene was on house arrest during the time period when the controlled buys with the confidential informant supposedly occurred; therefore, he could not have participated in the controlled buys.
To be entitled to a Franks hearing, the defendant must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks v. Delaware, 438 U.S. 154, 155-156 (1978). The false statement must be "necessary to the finding of probable cause." Id. at 156. An Amral hearing is ordered...
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Miranda v. Rodrigues
...police had identified as connected to a street gang calling itself the "Magnolia Street Steelers." See Commonwealth v. Miranda, 138 N.E.3d 1052 (Mass. App. Ct. 2019) (unpublished). Officers investigating the operation had collected evidence used against Miranda at his trial using wiretaps. ......